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In re Compensation of Estrada

Court of Appeals of Oregon

June 12, 2019

In the Matter of the Compensation of Juan Estrada, Claimant.
v.
FEDERAL EXPRESS CORPORATION, Respondent. 298 Or.App. 111 Juan ESTRADA, Petitioner,

          Argued and submitted March 13, 2018

          Workers' Compensation Board 1106447

          Julene M. Quinn argued the cause and fled the briefs for petitioner.

          Jerald P. Keene argued the cause for respondent. Also on the brief was Oregon Workers' Compensation Institute, LLC.

          Before Hadlock, Presiding Judge, and Aoyagi, Judge, and Linder, Senior Judge.

         Affirmed.

         Case Summary: Claimant seeks review of a Worker's Compensation Board order determining that his worker's compensation claim is barred. In reaching that determination, the board concluded that claimant did not establish "good cause" under ORS 656.265(4)(c) for failing to report a work-related accident resulting in injury within 90 days of the accident. In an earlier proceeding, the board had determined that claimant had established good cause and that his claim was not barred, but, on review, the Court of Appeals remanded the case on the basis that the decision lacked substantial reason. On remand, the board issued the order now on review. Claimant raises three assignments of error. First, claimant argues that the board violated the law-of-the-case doctrine when, on remand, it articulated a "new" legal standard for "good cause." Second, claimant argues alternatively that the "reasonable worker" standard for "good cause" that the board articulated on remand is unlawful as it is inconsistent with ORS 656.265. Third, claimant argues that the board violated the law-of-the-case doctrine by changing a factual finding on remand or, alternatively, that the new finding is not supported by substantial evidence. Held: The board did not violate the law-of-the-case doctrine with respect to either the legal standard for "good cause" or the board's factual findings. Because the board's first order lacked substantial [298 Or.App. 112] reason, the board either had to explain its reasoning differently on remand, or, if it realized that its prior reasoning was fawed, had to change its reasoning or its findings or both to achieve an order supported by substantial reason. The way it did so in this case did not violate the law-of-the-case doctrine. Further, the challenged factual finding is supported by substantial evidence. As for claimant's statutory argument, "good cause" under ORS 656.265(4)(c) is a delegative term, and the standard articulated by the board falls within the range of its discretion.

          [298 Or.App. 113] AOYAGI, J.

         Generally, an injured worker must give notice of a work-related accident to the employer within 90 days after the accident, or a worker's compensation claim for an injury resulting from the accident will be barred. ORS 656.265 (1), (4). However, a worker may give notice within one year after the date of the accident in some circumstances, including when the worker establishes that he or she had "good cause" for failing to give notice within 90 days. ORS 656.265(4)(c). In this case, the Workers' Compensation Board affirmed an administrative law judge's (ALJ) order in which the ALJ concluded that claimant had not established good cause for failing to report within 90 days the accident that caused his injury. Claimant challenges the board's order on multiple grounds. For the reasons that follow, we affirm.

         The historical facts relating to the claim are taken from unchallenged findings in the board's order. See Meltebeke v. Bureau of Labor and Industries, 322 Or. 132, 134, 903 P.2d 351 (1995), overruled in part on other grounds by State v. Hickman/Hickman, 358 Or 1, 23, 358 P.3d 987 (2015). Other undisputed facts, including procedural facts and a brief summary of claimant's hearing testimony, are included to provide context.

         Claimant worked as a delivery truck driver for employer, loading and unloading items weighing up to 150 pounds. On April 27, 2011, he felt "a weird pull" around his left testis area while loading a heavy item into the truck. He did not report a work injury because he thought it was "just soreness *** from extra work." Thereafter, claimant experienced continued symptoms, particularly with heavy lifting or pushing, which he understood as having begun as a result of the April 27, 2011, incident. He continued to work. After his symptoms increased, and work became more difficult, claimant sought treatment in September 2011. He was diagnosed with an inguinal hernia in October 2011. Claimant then reported the injury to employer and filed a workers' compensation claim. Employer denied the claim.

         Claimant requested a hearing before an ALJ. At the hearing, claimant testified as to the date, circumstances, [298 Or.App. 114] and location of the incident in which he was injured. He testified that he had "originally *** set aside the soreness," which he had thought was "just soreness from working harder." But, claimant testified, "between April 27th and about September," he "notice[d] an increase and just more constant soreness, constant pain, you know, just randomly, especially when [he] would do certain moves, you know- mainly lifting or, you know, pushing heavy items." It became harder to do his work. He "notice[d] it more and more and more, progressing," until "[i]t finally became, actually, even physically visible." The swelling in his left testis became "visibly noticeable" around late July or August, at which time he became "more concerned." Although it was "a personal kind of thing," and he "didn't want to just bring it up," claimant raised his concern to his doctor in September. Asked why he did not report the accident to his supervisors between April and September, claimant testified that he "wasn't aware [he] was injured" and "thought it was just a heavier work soreness." He also testified that he was still able to complete his job duties.

         The ALJ upheld employer's denial of the claim, based on ORS 656.265, [1] which states in relevant part: "(1)(a) Notice of an accident resulting in an injury or death shall be given immediately by the worker or a beneficiary of the worker to the employer, but not later than 90 days after the accident. The employer shall acknowledge forthwith receipt of such notice.

"(4) Failure to give notice as required by this section bars a claim under this chapter unless the notice is given within one year after ...

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